State v. Wyrick, ___ N.C. App. ___, 809 S.E.2d 608 (Jan. 16, 2018)

In this sexual assault case, the court rejected the defendant’s argument that the State’s impeachment of the defendant with his post-Miranda silence violated the defendant’s constitutional rights. After the defendant was arrested and read his Miranda rights, he signed a waiver of his rights and gave a statement indicating that he did not recall the details of the night in question. He was later connected to the crimes and brought to trial. At trial the defendant testified to specific details of the incident. He recounted driving an unknown man home from a nightclub to an apartment complex, meeting two young women in the complex’s parking lot, and having a consensual sexual encounter with the women. The defendant testified that the women offered him “white liquor,” marijuana, and invited him to their apartment. However, the defendant had failed to mention these details when questioned by law enforcement after his arrest, stating instead that he did not remember the details of the night. On cross-examination, the prosecutor asked the defendant why he had not disclosed this detailed account to law enforcement during that interview. The defendant stated that he was unable to recall the account because he was medicated due to a recent series of operations, and that the medication affected his memory during the interview. The court determined that the prosecutor’s cross-examination “was directly related to the subject matter and details raised in Defendant’s own direct testimony, including the nature of the sexual encounter itself, the police interrogation, and his prior convictions.” “Further,” the court explained, “the inquiry by the prosecutor was not in an effort to proffer substantive evidence to the jury, but rather to impeach Defendant with his inconsistent statements.” It concluded:

Defendant failed to mention his story of a consensual sexual encounter to the detective which he later recalled with a high level of particularity during direct examination. Such a “memorable” encounter would have been natural for Defendant to recall at the time [the officer] was conducting his investigation; thus, his prior statement was an “indirect inconsistency.” Further, the prosecutor did not exploit Defendant’s right to remain silent, but instead merely inquired as to why he did not remain consistent between testifying on direct examination and in his interview with the detective two years prior.